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Thursday, 27 March 2014

Those several readers who have spent the past few years only thinking about the Hargreaves Review of Intellectual Property & Growth will promptly recall that on 7 March last UK Government announced that it was about to finalise the regulations that would import new copyright exceptions into UK law.Yesterday a most distinguished and learned Katfriend alerted this Kat that these draft regulations would be laid before UK Parliament today for approval by resolution of each House of Parliament. This is indeed what happened.Today the following draft regulations were in fact issued:

The IPO has produced a user-friendly guide on the changes andtheir impact

As explained on the UK Intellectual Property Office website,

"The changes make small [here the typical British self-deprecation may be misleading: in some cases, eg private copying, the changes are not so small] but important reforms to UK copyright law and aim to end the current situation where minor and reasonable acts of copying which benefit consumers, society and the economy are unlawful."Subject to parliamentary approval, the new regulations will enter into force on 1 June 2014.

A special thanks to 1709 Blog's John Enser for the links to these statutory instruments, freely available (of course in the Svenssonsense) on the Legislation website.

Click here for guidance and explanation from the Government on changes to copyright.

2 comments:

Regarding the Personal Copies for Private Use exception, I am under the impression that the proposed s.28B(6)-(7) will have the effect that where an individual transfers a copy of a lawfully acquired work to another person (except on a private and temporary basis) he will be infringing (unless authorised by the copyright owner), regardless of whether or not that individual destroys the original. s.28B(8)-(9), however, provides that copyright will also be infringed where the individual, having made a copy, transfers the original to another (except on a private and temporary basis) "and, after that transfer and without the licence of the copyright owner, retains any personal copy." This therefore implies that if the individual transfers the original and destroys any copy he made he will NOT be infringing.

We therefore have the strange situation that transfer of the original accompanied with destruction of any copy IS NOT an infringement, but transfer of a copy accompanied with destruction of the original IS an infringement.

This has concerning, and perhaps unforeseen consequences in the context of digital files. To take music as an example, whilst these rules might make sense with physical CDs in mind (i.e. you can sell on the original physical CD but not a digital or physical copy of that CD), they do not in terms of legally downloaded music acquired via iTunes, Amazon etc. These files are generally not protected, allowing copies to easily be made (for the purposes of copying onto an iPod, or backup etc.) In this situation, it is impossible to tell which file is the "original" and which is the "copy", but knowing which is which is vitally important in the context of this draft exception.

Further, given that "private use" is expressly said to include making of copies for backup, format shifting and storage (s.28B(5)) this seems illogical. What would happen where an individual has backed up his legally downloaded music collection, suffers a corrupted hard drive which destroys the original downloaded file, and then moves the backup copy onto his new harddrive? In that situation, there is no original anymore, but he would be prevented from transferring the file due to s.28B(6)! The same analysis can be used where the individual changes the format of the file and deletes the original.

The best thing about this is that it ignores the basic logic of what is actually "bought" in the first place, as the "original" of anything digital is never actually transferred electronically - only a local new copy is made.

The "original" never leaves the confines of the source - the only thing "out there" in the real world of the digital are copies.

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